If you think its time to review your Florida Will or Florida Estate Planning Documents contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to review your documents before you begin to melt.
The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend
1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.
Many of my Jacksonville Estate Planning clients ask me when and how often they should review their Florida Estate Plan. I like to recommend that people take a look at their situation on a yearly basis and if they notice any of the following, they should make an appointment with their Florida Estate Planning Lawyer.
1. Change or contemplation of change in Marital status;We offer complimentary Florida Estate Planning reviews for our clients and those who have used another attorney in the past. Our goal is to provide the best protection for your and your family members. We often find that even some of the most expensive estate plans do not take into consideration the divorce or issues with your children. While some of us like our children-in-laws better than our own children, many do not want the future ex-spouse of our children to inherit 1/2 our our child's inheritance.
2. Death of spouse;
3. You or your spouses' health changes;
4. Death or change in the health or marital status of a trustee, executor, guardian, or beneficiary;
5. If you change your residence or move to another state;
6.. Change in or anticipation of the number of children or grandchildren whether by blood or adoption. Consider step-children also;
7. Any disabilities, health issues, or significant factors on lifestyle of children or grandchildren;
8. If you buy, sell, or contemplate buying or selling a business.
9. Upon the discovery of a hereditary issue that will or might affect you in the future; or
10. Change in tax law or its been more than two years since you reviewed your plan with your attorney.
A couple was recently charged with theft and elder abuse for taking money from their elderly parents, under authority of a power of attorney to pay for personal expenses. These included vacations, plane tickets, lodging and meals. Matthew D. Gardner an Iowa Estate Planning Lawyer wrote about this case and the increasing frequency of elder abuse in the past year.
A Power of Attorney grants the agent (attorney-in-fact) broad powers to act in the best interest of he person. Often agents who accept this power do not understand that the money is not theirs to use as their own but the authority grants the agent the power to act in the other person's best interest.
If you suspect that someone is misusing the Power of Attorney granted to them, report the information immediately to the local police who will be able to properly investigate the case. If you have been affected by this misuse you may have a claim against the agent for the harm they have caused you and should Contact a Florida Estate Planning Lawyer
Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.
Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone's right to an expectancy as a beneficiary or owner of an account.
In addition to creating liability to the beneficiary or the decedent's estate, in Florida such actions can also create criminal liability under Florida's Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.
It is important to file a caveat or lis pendens as soon as possible to prevent the assets from being transferred to those who are without notice of these potential claims. Filing a caveat can make sure you receive notice prior to a will being admitted and a personal representative being appointed by the Florida Probate court.
If you believe your inheritance has been adversely affected by the actions of an agent acting under a durable power of attorney please Contact a Florida Estate Planning Lawyer to discuss an action against the agent or the estate.
There has been an effort for many years in NY to reform the POA laws to make agents more accountable and reduce the incidents of financial abuse. Governor Patterson signed the bill into law last week and it is effective in less than 30 days!! Agents are now required to sign POA and Principal must sign an addendum to grant gifting powers to agent.
As many residents of New York and Florida travel back and forth it might be important to review your Florida Durable Power of Attorney if your NY based agent intends to make gifts.
The bill is Chapter 644 of 2008 [Assembly bill A6421-B (Weinstein) Senate bill S4996-B (Volker)]
Download NY POA Bill
I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of counsel and the problems with online document preparation services like LegalZoom and RocketLawyer.
I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents. Last week I wrote about problem with the Quicken Willmaker 2009 Durable Power of Attorney. This week I will be looking a the Revocable Living Trust. I have previously written about the many problems in using Quicken to create a Firearms Trust but for this article I will be focusing on the typical issues with regular estate planning and living trusts.
1. No free updates and old language, in order to keep your trust up to date, you need to purchase the software every year and hope they have dealt with changes in your state laws. Quicken seems to be slow at incorporating small or significant changes in the law. The changes in the new trust code from Florida in the years 2006 and 2007 have not been incorporated into the software. Quicken does not let you know what years statutes its language is based upon. Quicken states that when their users report problems they try to fix the program. Unfortunately, their users are not lawyers, and their users never find out about the problems. Their family may find problems when it is to late to make changes, but they have no way to ask, nor to they attempt to ask the beneficiaries to report problems.
2. Review your document is advice given to the users by Quicken. Quicken's instructions also state to make sure that your document says exactly what you want it to. Although Quicken recommends that you have your document reviewed by an attorney, they neglect to mention that useful advice in their instructions under the review section. Living trusts are complicated documents, how the state law interprets the language you choose is complicated. Lawyers have differing interpretations, how can a non-lawyer pretend to understand what the outcome of the language they choose will be. Want proof of this, check out Do It yourself and Free Estate Planning Documents and see some of the results that have occurred when users attempted to make their own trusts and wills.
3. Register your trust with the court? Quicken incorrectly advises that you must register your living trust with your local court. Although there are some states that do require this they incorrectly state that it is a requirement in Alaska, Colorado, Florida Hawaii, Idaho Maine, Michigan, Missouri, Nebraska, and North Dakota.
4. Quicken WillMaker Doesn't Provide Legal Advice. The instructions state later that Quicken published legal forms that are useful in many situations but they can not tell you whether or not a form is right for you, given your circumstances. Only a lawyer can do this and you should consult a licensed attorney in your state.
The Trust
5. Part 2 of the trust declares that the assets mentioned in the trust have been delivered. While this may work for an assignment of interest, anything requiring a deed can not be transferred by this language. Individuals should not rely on this misleading statement and believe that their assets are transferred because they sign a sheet of paper that states that they have.
6. Revocation and Amendments: The Quicken trust allows revocation after one of the grantor's dies. Typically a revocable trust becomes irrevocable and cannot be changed once a settlor or grantor dies. Quicken does make this distinction when dealing with an amendment and states that the trust cannot be amended once a Grantor dies. I am not sure why or how they allow a trust to be revoked by not amended after the death of a Grantor.
7. Amendment by power of attorney: Florida case law states that a trust must specifically allow for amendment by a durable power of attorney, and the durable power of attorney must authorize the act specifically. The quicken trust includes language that the trust shall not be amended by an agent unless the document creating that power authorizes the amendment. This may or may not comply with the case law. It would be simple to ensure that it did comply compared to the language that is used.
8. Income. The Grantors are required to take all income from the trust at least annually. It would seem that this creates assets that are subject to probate and may not be what the individuals desire.
9. Successor Trustee. The successor trustee is chosen automatically but there does not appear to be an ability for someone else to choose a more appropriate trustee at the time one is needed. Quicken does give the last serving trustee the ability to appoint a new trustee if the successor trustee is unable or unwilling to serve. What happens if the trustee ceases serving because of death, who would have the power to appoint a new trustee? Quicken leaves this question unanswered.
10. Compensation. While Quicken allows for several choices for compensation, their no compensation choice does not contemplate the need to have a professional or corporate trustee.
11. Powers. The Quicken trust states that the trustee has all the authority and powers allowed or conferred on a trustee under Florida law. They do not tell you what these powers or authorities are or where to find a list of them. Also are they the powers granted when the document was signed, or when one goes to use the powers. While this may not seem important one should consider the substantial changes made in the area of a trustee's powers within the last 2 years in Florida.
12. Incapacity: Quicken gives the power to determine incapacity to a person, rather than a court conservator or guardian, or physicians. Under this trust it would be very easy for your children or whom ever you select to declare you incapacitated, remove you a trustee, and appoint a successor trustee of their choice.
13. Beneficiaries. Although quicken does appear to do a better job of checking the names of a beneficiary to make sure it is not a grantor, they only look for an exact match and do not question names that are close or provide a warning for any name. I found that it was possible to name yourself as your own beneficiary using a slightly different name, misspelling, or middle initial. This creates several problems and can void the trust.
14. Survivorship. The quicken trust voids a gift to a beneficiary if that beneficiary dies within 120 hours. This can cause some big problems when there are large unpaid medical bills related to the death of a beneficiary. To deal with this issue completely you should contact an estate planning lawyer.
15. Spendthrift provisions. Quicken does not make a mistake in this area because they do not address the concept.
16. Property transfer. Quicken does not address the potential for a re-evaluation of property taxes upon the transfer of a piece of property into the trust when the names on the trust are different than the current title on the property. Nor does quicken address the requirement that taxes may be assessed.
17. Choice of law, venue, arbitration, required notices under Florida Trust code. Quicken does not address these, perhaps they are not important. Whether that is true depends on your circumstances and what happens in the future, where you live when you die, where your beneficiaries live when you die. I personally feel that every trust should address these issues including the requirements of the new Florida Trust code, but if you use Quicken you will not have the benefit of these provisions either.
There are many mistakes in the Quicken documents, most disturbing might be some of the things that are not included in a Quicken trust. Quicken gives none of the flexibility to a trust that make it useful for the common person. A trustee under a Quicken trust could not do anything without creating liability to a beneficiary because by default they must act as a prudent trustee. If you have a trust created by Quicken 2009, 2008, 2007 or a previous version, you should have it reviewed by an estate planning lawyer. If you are in Jacksonville or anywhere in Florida Contact us about reviewing your Quicken Revocable Trust.
I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of councel and the problems with online document preparation services like LegalZoom and RocketLawyer.
I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents.
Problems and issues I encountered with the Quicken Durable Power of Attorney.
1) Willmaker 2009 now attempts to verify duplicate names but only catches them in the event that they are spelled exactly the same, they do no use any fuzzy logic to find and warn about names that are close. For Example David Goldman could be the agent for Dave Goldman, David M. Goldman, or David Michael Goldman. Although it will catch an exact duplicate, this problem allows for potentially invalid documents to be created.2) The instructions suggest that the DPA must be filed at the courthouse to become effective, this is not true in Florida.
3) The instructions suggest that a revocation is not effective unless you file it with the courthouse and notify anyone who has a copy with the revocation. Although this is a good idea, the point of filing it with the courthouse is to put the world on notice. It is impossible to know everyone who would have received a copy or acted upon the validity of a Durable Power of attorney in the past. This can cause the individual to spend more than $120 in unnecessary filing fees.
4) The document does not comply the the Florida Statutes for Durable Powers of Attorney and as such the individual or agents have no right to sue and collect costs and fees associated with the improper denial of authority granted under the Durable power of attorney.
5) The document is effective upon the execution of the agreement, there is no option for deployment contingent (becoming effective upon incapacity), nor is there an option to limit the time that the document will be effective for. This is significant problem because it assumes that everyone wants to grant their agent the power to do anything they want and right now. In fact, very few individuals want to grant this type of power, and most who initially do, change their mind after learning what they will be doing from an attorney.6) Their instructions warn that their conversion utility may not make an accurate conversion to Microsoft Word or RTF formatting so you need to verify that the versions are the same. This seems like something that they should have done prior to releasing the product to the public.
7) They inaccurately state that the witnesses signatures must appear on the same page as yours.
8) they do not save the footers and suggest that you break each section into a unique document and insert footers with the instructions found in the manual. This is not necessary and for most documents the footers are unnecessary and not a requirement of Florida Law.
9) States that the agent must have the original Durable Power of Attorney to act. A copy of the Durable Power of attorney is just as valid as the original. In fact, if you follow their MANDATORY (but not really mandatory) instructions of filing the document in the county records the original may be kept they the county.
10) They recommend asking your Agent not to use it unless your incapacitated. There is no requirement for them not to act, and no liability for the agent if he does act. This is not the proper way of dealing with this issue under the Florida Statutes.
11) They do have a nice warning which states that if you do not understand anything about this document you should ask a lawyer to explain it to you. We are not sure if that warning is intended for the agent or the principal.
12) Quicken appears to have a provision which creates a Pre-Need Guardian designation within their power of attorney. Typically this is a separate document which is filed in the county records. Although, if you file the recommendation and file the document in the county records, there would appear to be a public record of this request, it might be overlooked or ignored by the court because it is hidden inside a power of attorney. In addition, by statute, a DPA becomes ineffective once you receive notice of a pending petition for guardianship. This would appear to make your nomination invalid during that time.
SUMMARY: While the Quicken WIllMaker can produce a valid Durable Power of Attorney in Florida banks, businesses, and others can refuse to honor it without liability because it does not comply with the Florida statutes. You can also create invalid document, will unnecessarily spend more than an additional $120 in state filing fees, create a potentially invalid pre-need guardian selection, and expose yourself to unnecessary risk and liability.
Conclusion: For around the same price as the software and the recording fees, you can have an attorney discuss your needs and draft a document that provides you additional protections that comply with Florida law. In addition, for most people a deployment contingent Durable Power of Attorney is what is needed compared to the higher risk document created by Quicken. There are many mistakes and misguidance found within the generic documents created by the software package.
If you are looking for a Free or Low cost Durable Power of attorney, it may be less expensive and a better value to contact a Florida Estate Planning Lawyer.
Google Health just began offering personal health records on the Web. They are joining WebMD, Microsoft, and Revolution Health.
These services are designed to help consumers manage their health care and medical spending records.
Google record allows users to send personal information to some clinics or to pull records from the clinic into the Google personal file. One clinic that has begun working with Google is the Cleveland Clinic.
As of the launch, more than two dozen companies announced a partnership with Google Health. Some of the companies include Walgreens, CVS, the American Heart Association, Quest Diagnostics, Beth Israel, Deaconess Medical Center, and the Cleveland Clinic.
If you plan to subscribe to a service like this make sure you deal with it in your Durable and Medical Powers of Attorney so that the benefit from these services is not lost by your subsequent incapacity.
To discuss how to integrate these services into your Florida Estate planning documents Contact a Jacksonville Estate Planning Lawyer.
POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA
Except as otherwise limited by statute (below), by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may not include:
1. Perform duties under a contract that requires the exercise of personal services of the principal;
2. Make any affidavit as to the personal knowledge of the principal;
3. Vote in any public election on behalf of the principal;
4. Execute or revoke any will or codicil for the principal;
5. Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or
6. Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.
PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA.
Unless otherwise stated in the Florida durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the Principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; chooses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.
If you have questions about the validity or scope of your Florida Durable Power of Attorney Contact a Florida Estate Planning Lawyer
Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.
Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.
If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.
If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.
Continue reading "Guardianship and Durable Power of Attorney in Florida" »
Often clients do Florida Estate Planning in anticipation of an overseas trip or international relocation. They often ask if they should make special considerations because of their anticipated location.
Generally we advise clients that the planning is basically the same even if they will be living overseas for an extended period of time. The one area where there may be differences is in their Durable Power of Attorney where it might be advisable to make changes.
These changes require an evaluation of the current and anticipated needs of the individual client and cannot be generalized.
If you are planning an international trip, going on a cruise, or moving overseas for a time, you should contact a Florida Estate Planning Lawyer to discuss or review your Florida Estate Planning Documents .
The Wall Street Journal online has an article on How to Ensure Relatives Don't Rip You Off. Also the Toronto Estate Law Blog has an article today on POA abuse.
The article mentions several things that can be done to safeguard clients.
1) a provision requiring regular accounting statements from the agents.
2) Naming co-agents who can serve as checks on each other.
3) naming a supervisor who has the power to fire an agent
When setting up a Power of Attorney, you want to name an agent while you're still in good health and can make clear decisions. Typically, such documents are included as part of a standard Florida estate-planning package, which also includes a Florida Will and health-care proxy giving an agent the power to make health decisions when you can't.
Powers of Attorney are often a tough balancing act: You want them to be simple for trusted family members or friends to implement, without too many hoops each time a transaction is made. But you also want to avoid giving agents a license to steal.
To further protect yourself, you can require that your agent provide family members, or a third party, such as a lawyer or accountant, with regular accounting statements. Another strategy is to name co-agents. While that can be a burden -- many transactions, for instance, would need two signatures -- it can also create a system of checks and balances. In some cases, lawyers appoint an additional safeguard: a "protector," who has the power to replace the agent if there is wrongdoing.
Another key point: Make sure to carefully lay out exactly what powers you want your agent to have. For instance, you can limit the agent's power to make gifts of your property, so they can't just give money to themselves. Spell out under what conditions gifts can be made, how much and to whom.
Today, I received a response from RocketLawyer about the article I wrote on using a Free Durable Power of Attorney and potential problems. The good news is they are asking for help to fix the problems. As noted in their email, they do encourage visitors to seek legal counsel from attorneys like me when they are unsure of doing something for themselves. My only question which I shall pose to them, is how is a consumer who is uneducated in legal matters supposed to determine when they are unsure of how to do something. Isn't the point of using a service like theirs to rely on their expertise to help create legal documents?
Below is a copy of their email
Dear David,I will keep you updated with the progress on this topic.
I recently read your critique of our Florida Durable Power of Attorney form on your blog. We strive to offer the best legal help to consumers online and we take criticism like yours seriously.
As such, perhaps you would be willing to help us perfect the form to remedy the defects that you think exist? We have our own staff attorneys who review our documents for accuracy regularly. But, that doesn’t mean that someone like you can’t add additional value for our visitors.
You also wrote about how to cancel a RocketLawyer.com membership. It is very easy. We stand by our promise of a free document, and [canceling] is clearly detailed on our support page, which is accessible from every page on the site. Our customer service reps are also trained to send people to this page immediately, as we have a 100% satisfaction guarantee.
Lastly, we also encourage visitors to seek legal counsel from attorneys like you, when they are unsure about doing something for themselves. Perhaps you would be willing to create a free profile at RocketLawyer.com to potentially help our visitors and even promote your services to potential clients?
Please feel free to contact me directly and perhaps after you have had a chance to create your profile and work with our editorial team, you may reconsider your assessment and help us deliver affordable legal help together.
Kind regards,
Charley Moore
Gurfinkel v. Marmor, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA December 12, 2007)
The decedent’s trust beneficiaries challenged a pre-death "amendment" executed by the decedent’s spouse as attorney in fact pursuant to a valid Durable Power of Attorney . The amendment "deleted" the trust’s primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent’s sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.
What does this mean, if you want your agent acting under a Durable Power of Attorney to be able to change your trust, your trust should include language to allow for it.
To review your Durable Power of Attorney and Florida Revocable Trust Contact a Florida Estate Planning Lawyer.
The other day, I wrote an article on the pitfalls of using a Free Florida Durable Power of Attorney. I have been thinking of a way to provide a good power of attorney for my readers. I have been unable to come up with a generic form that I feel comfortable publishing because of the huge liability associated with the Power of Attorney in Florida. Perhaps I will figure a way to accomplish this in the future. In the mean time, I have created the second most important document to any Florida Estate Plan - the Combination Living Will, Designation of Health care Surrogate and HIPAA Release.
You may ask what is a Combo Living Will and how is it different than my existing document. The biggest difference is that this document contains a HIPAA release which is necessary for your agent to obtain medical records, and the power for your agent to make decisions when you are unable to.
Many lawyers provide these as 3 separate documents. I find that my clients like to have them in a single document because it avoids the ability for your agent to show one or more but not all of the documents to achieve their desired results and circumvent yours. By having a single document you can make sure the objectives of Florida Living Will are preserved and consistent with any actions taken by your medical agent.
Free Combination Living Will, Designation of Health care Surrogate and HIPAA Release
You should have this document reviewed to make sure it was executed properly. Please contact your Florida Estate Planning Lawyer or Florida Lawyer to review the document.
Although a Power of Attorney often authorizes the agent to give gifts, agents should be careful when making gifts to themselves.
The Chicago Tribune has an article on an agent who gave herself $180,000 in gifts and the ensuing court battle over theft by deception, financial exploitation of an elderly person and conspiracy to commit financial exploitation of an elderly person.
If you believe someone has taken advantage of your or a loved on by the inappropriate use of a Durable Power of Attorney or Power of Attorney you should Contact a Florida Estate Planning Lawyer to review the facts.
A Power of Attorney is generally valid when you travel because a Power of Attorney valid in another state will be valid in Florida. That being said there has been a problem with out of state Power of Attorney being properly recognized in Florida. As a result Florida passed laws that when complied with allow the agent to recover fees associated with the enforcement of a Power of Attorney which is in substantial compliance with the statute.
What does that mean for you? There is no reason why someone should not accept an out of state Power of Attorney, but no recourse when they do not.
Generally when moving to Florida, we recommend that our clients execute new Durable Power of Attorney Documents when possible. When this is not possible clients can check with their local banks to see if they will accept them. This should be done prior to transferring money to the financial institution. We have seen cases where banks accept the transfer and creation of accounts and then do not accept the agent's authority later.
To check if your Durable Power of Attorney or Power of Attorney is compliant with Florida law please Contact a Florida Estate Planning Lawyer.
Recently we have notice that Hospice organizations are refusing to allow people to visit relatives or friends while under the care of Hospice.
In these cases, the people were turned away because someone with a Power of Attorney was able to state that the person was not wanted.
It is important to remember that a Power of Attorney or Durable Power of Attorney give an agent the right to act in certain circumstances. In Florida, a Power of Attorney does not give someone the right to make decisions regarding where they are located, who they can visit, or who they can talk to.
It is possible to make these decisions for an individual, but only when someone has been appointed as their Florida Guardianship. Even if someone is the Florida Guardian they may not have these rights.
If you have a loved one and you are being prevented from seeing them because of a Power of Attorney you should Contact a Florida Estate Planning Lawyer to discuss your situation.
Florida judge who presided over the Terri Schiavo case until her death, has a new assignment. He no longer judges Florida Guardianship cases. He judges divorce cases.
The Judges transfer from Florida Probate and Florida Guardianship court to family court should allow Judge Greer who is now 65 to serve the next three years in obscurity before his retirement.
Judge Greer is nationally famous and has 20 honors displayed in his chambers. The largest is the 2005 President's Award of Merit from the Florida Bar, "for your unswerving commitment to the rule of law, the independence of the judiciary and the fundamentals of American democracy."
With the recent cases like Britney Spears competency hearing, many have found the need for a Durable Power of Attorney and the Schiavo case is a good reason people need a Florida Living Will. After all if Schiavo had a Florida Living Will she and Judge Greer would not have had the national spotlight. The fight was only because Schiavo did not have a Florida Living Will.
If you would like a Power of Attorney or Florida Living Will please Contact a Florida Estate Planning Lawyer to discuss your needs.
A common technique with large Florida Estate Planning is the use of FLP's or Family Limited Partnerships. Neil Hendershot of the PA Elder, Estate & Fiduciary Law Blog summarized the recent highlights of the Heckerling Institute where they discussed those issues in detail.
The most important issues dealt with making sure there was
(1) not a gift on formation of a family limited partnership. This can be done by making sure the partnership is property funded and the capital accounts are credited. The recommendation was that during the next tax year he or she transfer partnership interest. This helps to avoid the argument that the transfer was contemplated at the time of the capital contribution. See Senda, T.C. Memo 2004-160 (July 12, 2004). One must also take this into consideration with additional contributions because they are valued with the amount given instead of a discounted valuation.
(2) Avoiding Bad Facts based on formation and operation. You do not want to have these issues used to devalue the discount on the entity.
• Disproportionate Distributions to senior family members.
• Distributions that cover senior family member's expenses.
• Do not create the partnership by an agent acting under power of attorney.
• Do not use partnership funds to pay estate taxes after death. If this looks like it will be necessary consider using a life insurance policy or a hands length loan from the partnership to fund those expenses if it is necessary.
(3) Senior family member should have no control at death or within 3 years of death to avoid an inclusion look-back period under IRC § 2035. If the senior family member must serve as a general partners remove "sole and absolute" authority language and any overly protective clauses.
(4) FPL's should be created for legitimate non-tax business purposes to avoid inclusion arguments. It is likely that the drafting attorney will provide testimony of the non-tax reasons. It might be advisable to use a separate attorney to draft the agreement who has no knowledge of the discounting opportunities when creating a Family Limited Partnership for Florida Estate Planning
(5) Potential problems arise with using a martial trust for the benefit of a surviving spouse. These interests may not get the same discounted treatment which can cause problems.
(6) Be careful with the 100 Shareholder rule when using S corporations as it is possible to have more than 100 shareholders when you look at all family members who are lineal descendants up to six generations including current and former spouses.
(7) Nonresident aliens or other non-approved shareholders can create problems with S corporations.
(8) S corporations can only have a single class of stock and all must have equal rights. Look out for disproportionate distributions, buy-sell installments, and split-dollar arrangements
The article goes on to discuss other concerns and should be reviewed by anyone looking to create a Family Limited Partnership for Florida Estate Planning
For more information on how a FLP can be an effective tool in Florida Estate Planning Contact a Florida Estate Planning Lawyer
Mississippi's Supreme court decision reinforces the importance of having a Durable Power of Attorney. A Florida Durable Power of Attorney can be one the most important Florida Estate Planning Documents, a Power of Attorney allows a person you "agent" or "attorney-in-fact" -- to make financial decisions for you when you are unable to make these decisions for yourself.
In this case, Mrs. Goodlett admitted her mother, to a nursing home. During the mothers stay at the nursing home, Mrs. Goodlett developed two decubitus ulcers (bed sores), which required surgery. Mrs. Goodlett told the nursing home that she was going to sue the nursing home for negligence and sent them a medical authorization with permission to release Mrs. Goodlett's medical records. Due to complications from a stroke, Mrs. Goodlett was unable to sign her own name to the medical authorization. The nursing home refused to release the medical records, claiming that because Mrs. Bernadette did not have a Power of Attorney over her mother, only Mrs. Goodlett could authorize the release of the medical records.
Mrs. Bernadette sued the nursing home on behalf of her mother for negligence.
The Mississippi Supreme Court reversed the trial court's decision because Bernadette did not have Power of Attorney for her mother, she was not entitled to her mother's medical records. Therefore, Bernadette could not file suit without including the required form.
Had Mrs. Goodlett given Bernadette a Power of Attorney before the medical records were requested, the lawsuit would have been able to proceed.
A Power of Attorney is an easy document to put into place and can make things much easier for your family if you are incapacitated.
Britney’s dad had was appointed as conservator of her person and co-conservator of her estate, which means her dad is now in control of what Britney can do, who she can see, and he’s controlling all access to her bank accounts and credit cards.
Over the weekend, Britney attempted to hire her own lawyer to fight her dad’s attempt to take over her personal and financial affairs.
But, the Court refused to recognize Andrew Streisand as Britney’s lawyer because the court-appointed lawyer assigned to evaluate Britney said that Brit doesn’t have capacity right now to hire her own lawyer.
You’d think that someone with her wealth would have a Will , a Revocable Trust , Health Care Directives, Powers of Attorney, Guardian Nominations … basically a comprehensive estate plan.
It’s too late now for Britney, but it’s not too late for you … today having a personal lawyer is both accessible and affordable and if you own your home, care about your family, and want a trusted advisor to call when you are in crisis, you should have your own. To create of review your Florida Estate Planning Contact a Florida Estate Planning Lawyer.
Florida changed their statute regarding Power of Attorney several years ago. It seems that many banks and other financial institutions were not honoring existing powers of attorney documents. Florida changed Florida Statute 709 to allow for enforcement and recovery of expenses associated with the improper denial of a Power of Attorney.
Clients often ask if what limits there are on a Power of Attorney or a Durable Power of Attorney .
Although a client can limit the powers in a Power of Attorney the right to change a Florida Will under Florida Law. Recently we have begun adding specific provisions to allow for the modification of a Florida Revocable Trust with a Durable Power of Attorney. When this happens it is important to also include provisions in the Florida Revocable Trust to allow for the modification by Durable Power of Attorney. Charles Rubin who writes the Rubin on Tax blog has an article where he discusses this. There was a recent Florida Case where a Florida Revocable Trust was in conflict with a Power of Attorney. The court ruled that the prohibition by the Florida Revocable Trust on modification by Power of Attorney trumped the Power of Attorney.
Florida residents should start the New Year off right, here are ten important Florida estate planning and Florida probate and tips for the New Year.
1. If you don’t have a Will, get one.
Florida estate planning and Florida Probate tip #1: Have a Florida Will. If you don’t have a Florida Will, get one. In particular, married couples with children from prior relationships should always have a Florida Will. Otherwise, the state will decide who gets the money at death.
2. Get a Medical Power of Attorney and Advanced Medical Directive.
Florida estate planning and Florida Probate tip #2: Along with a Will, everybody should have a Florida medical power of attorney and an advanced medical directive. A Florida medical power of attorney designates an individual to make health care decisions for you should you be unable to do so. An advanced medical directive, commonly called a living will, states in advance what you want in the way of life sustaining treatment when death is imminent or when you are in a persistent vegetative state.
3. Review all beneficiary designations on life insurance, retirement accounts, and other financial accounts.
Florida estate planning and Florida Probate tip #3: Review all beneficiary designations on life insurance, retirement accounts and other financial accounts. You may be surprised at what you find. Do not settle for a verbal confirmation. Make sure you see the documents.
4. Get a permanent life insurance policy.
Florida estate planning and Florida Probate tip #4: Evaluate the need for permanent life insurance. Liquidity is important in life and at death. The lack of liquidity at death can increase legal fees and cause property to be sold for less than its actual value – far less. Even a small amount of life insurance is better than none.
5. Put your permanent life insurance in a life insurance trust.
Florida estate planning and Florida Probate tip #5: If you have substantial, permanent life insurance, consider putting the life insurance in a life insurance trust. Moving your life insurance into a life insurance trust removes the insurance from your gross taxable estate for federal estate tax purposes and protects the insurance policy from creditors. This can save you 45% or more of the policy value.
6. Put your inheritance in an irrevocable trust for asset protection.
Florida estate planning and Florida Probate tip #6: Get it and give it in trust. When you give an inheritance in an irrevocable trust, you also give some level of asset protection. If you are the potential recipient of an inheritance and if you have the ability to speak openly with the person making the gift, consider suggesting that the gift be made in some form of irrevocable trust. There is some cost to a gift in trust. However, the asset protection benefits typically outweigh the cost.
7. Put all your estate planning documents in a safe deposit box.
Florida estate planning and Florida Probate tip #7: Obtain a safe deposit box and put your original Florida estate planning and other important documents in the box. Fire safes and file cabinets are certainly better than nothing if you let somebody know where to look. However, many Wills vanish or are lost shortly before death. If the original cannot be found and the original was last seen in your possession, Florida courts presume that you destroyed or revoked the Will. While a copy of a Florida Will can sometimes be probated in a Florida probate, it can be expensive and not always successful.
8. Protect your heirs against local expensive probate proceedings.
Florida estate planning and Florida Probate tip #8: If you own real estate outside of the state where your Will is to be probated, make sure that transferring the real estate to your heirs will not require a local, expensive probate proceeding. This can be accomplished several ways. Some states have a simplified probate procedure for making the transfer without opening a local probate proceeding. Other states allow for beneficiary designations through something called beneficiary deeds. In most states, the probate process can be avoided by transferring the real estate into a revocable trust. Otherwise, be prepared to spend several thousand dollars to make the transfer after the death of the owner. Note: Property in a foreign country can be very expensive to transfer upon death. Also pay attention to foreign estate tax. Unlike the United States, the estate tax can vary greatly based upon whom you give the property to at death.
9. Leave property to your husband or wife in trust.
Florida estate planning and Florida Probate tip #9: Consider leaving property to your spouse in trust instead of outright. The trust accomplishes three goals.
1. Avoiding estate tax.Many family estates have been lost when the surviving spouse remarries and leaves the family assets to the new spouse or his/her family. We see more money lost to shifting bloodlines than we have ever seen paid in federal estate tax.
2. Protecting the assets from the surviving spouse’s creditors.
3. Controlling how the remaining funds are distributed.
10. Know if your state has state or estate/inheritance taxes.
Florida estate planning and Florida Probate tip #10: If you have a tax planning estate plan, know whether your state has estate tax. Florida does not have any estate tax, but if you become domiciled in another state your estate may be subject to estate taxes. Many states are implementing estate or inheritance taxes.
What is "fiduciary responsibility?"
An attorney-in-fact is a fiduciary and as such has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the attorney-in-fact to exercise reasonable care and caution in managing the assets of the principal. The attorney-in-fact must apply this standard to the overall investments and not to one specific asset. If an attorney-in-fact possesses special financial skills or expertise, he or she has an obligation to use those skills. The attorney-in-fact should keep careful records. Everything the attorney-in- fact does for the principal should be written down, and the attorney-in-fact should keep all receipts and copies of all correspondence, and consider logging phone calls so if the attorney-in-fact is questioned, records are available.
This is the last part on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.
When does the attorney-in-fact's authority under a Durable Power of Attorney terminate?
The authority of the attorney-in-fact of a Durable Power of Attorney automatically ends when one of three things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, or (3) when a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force. In any of these three instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority. The power to make health care decisions, however, is not terminated when a court determines that the principal is totally or partially incapacitated unless the court specifically terminates this power.
What is the procedure for a principal to revoke a Power of Attorney?
Written notice must be served on the attorney-in-fact and any other party who might rely on the power. The notice must be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.
When does a general Power of Attorney terminate?
In addition to the three events detailed above, a general (non-durable) Power of Attorney terminates when the principal becomes incapacitated. If the principal of a non-durable power of attorney is believed to be incapacitated, then the attorney-in-fact should consult with his or her lawyer before exercising any further powers on behalf of the principal.
Court proceedings were filed to appoint a guardian for the principal or to determine whether the principal is incapacitated. How does this affect the Power of Attorney?
If a court proceeding to determine the principal's incapacity has been filed or if someone is seeking to appoint a guardian for the principal, the Durable Power of Attorney is automatically suspended and an attorney-in-fact must not continue to act. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power.
Authority as attorney-in-fact has been suspended because guardianship proceedings are pending for the principal. Now there is an emergency but there is no guardian and no attorney-in-fact to do something. What now?
The attorney-in-fact may ask the court for special permission to take care of the emergency even though the Power of Attorney remains otherwise suspended. Contact your lawyer.
This is the sixth part of a seven part article on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.
RELATIONSHIP OF POWER OF ATTORNEY TO OTHER LEGAL INSTRUMENTS
What is the difference between an attorney-in-fact and an executor or personal representative?
An executor, termed a "personal representative" in Florida, is the person who takes care of another's estate after that person dies. An attorney-in-fact may only take care of the principal's affairs while the principal is alive. A personal representative may be named in a person's Will and is appointed by the court to administer the estate.
What is the difference between a "trustee" and an "attorney-in- fact?"
Like a power of attorney, a trust may authorize an individual to act for the maker of the trust during the maker's lifetime. Like an attorney-in-fact, the trustee may manage the financial affairs of the maker of the trust. A trustee only has power over an asset that is owned by the trust. In contrast, an attorney-in-fact may have authority over all of the principal's assets (except trust assets). Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, the Power of Attorney expires upon the death of the principal.
What if the principal has a "guardian" appointed by the court?
If no less restrictive appropriate alternative is available, then a guardian may be appointed by the court for a person who no longer can care for his or her person or property. A person who has a guardian appointed by the court may not be able to lawfully execute a Power of Attorney. If an attorney-in-fact discovers that a guardian has been appointed prior to the date the principal signed the Power of Attorney, the attorney-in-fact should advise his or her lawyer. If a guardianship court proceeding is begun after the Durable Power of Attorney was signed by the principal, the authority of the attorney-in-fact is automatically suspended until the petition is dismisssed, withdrawn or otherwise acted upon. The law requires that an attorney-in-fact receive notice of the guardianship proceeding. If a guardian is appointed, the Power of Attorney is no longer effective unless the court allows certain powers to continue. The power to make health care decisions, however, is not suspended unless the court specifically suspends this power. If the attorney-in-fact learns that guardianship or incapacity proceedings have been initiated, he or she should consult with a lawyer.
May a Power of Attorney avoid the need for guardianship?
Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian since the attorney-in-fact already has the authority to act for the principal. As long as the attorney-in-fact has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the attorney-in-fact to act on the principal's behalf.
This is the fourth part of a seven part article on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.
When is a Durable Power of Attorney effective?
The Durable Power of Attorney is effective as soon as the principal signs it unless the document specifies that it is conditioned on the principal's lack of capacity to manage property in which case appropriate affidavits are required in accordance with Florida law.
Must the principal deliver the Power of Attorney to the attorney- in-fact right after signing or may the principal wait until such time as the services of the attorney-in-fact are needed?
No. The principal may hold the Power of Attorney document until such time as help is needed and then give it to the attorney-in- fact. Because third parties will not honor the attorney-in-fact's authority unless the attorney-in-fact provides the Power of Attorney document, the use of the Power of Attorney may effectively be delayed.
Often, the lawyer may fulfill this important role. For example, the principal may leave the Power of Attorney with the lawyer who prepared it, asking the lawyer to deliver it to the attorney-in- fact under certain specific conditions. Since the lawyer may not know if and when the principal is incapacitated, the principal should let the attorney-in-fact know that the lawyer has retained the signed document and will deliver it as directed.
How does the attorney-in-fact initiate decision-making authority under the Power of Attorney?
The attorney-in-fact should review the Power of Attorney document carefully to determine what authority the principal granted. After being certain that the Power of Attorney gives the attorney-in-fact the authority to act, the Power of Attorney (or a copy) should be taken to the third party (the bank or other institution, or person with whom you need to deal). Some third parties may ask the attorney-in-fact to sign a document stating that the attorney-in-fact is acting properly. (The attorney-in- fact may wish to consult with a lawyer prior to signing such a document.) The third party should accept the Power of Attorney and allow the attorney-in-fact to act for the principal. An attorney-in-fact should always make it clear that the attorney-in-fact is signing documents on behalf of the principal.
How should the attorney-in-fact sign when acting as an attorney-in-fact?
The attorney-in-fact will always want to add after his or her signature that the document is being signed "as attorney-in-fact for" the Principal. If the attorney-in-fact only signs his or her own name, he or she may be held personally accountable for whatever was signed. As long as the signature clearly conveys that the document is being signed in a representative capacity and not personally, the attorney-in-fact is protected. Though lengthy, it is, therefore, best to sign as follows:
Howard Rourk, as attorney-in-fact for Ellsworth Toohey.
In this example, Howard Rourk is the attorney-in-fact, and Ellsworth Toohey is the principal.
What if the third party will not accept the Power of Attorney?
If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. Due to changes in the law, Durable Powers of Attorney executed on or after October 1, 1995, have more clout. An older document may be enforced as well. Under some circumstances, if the third party's refusal to honor the Durable Power of Attorney causes damage, the third party may be liable for those damages and even attorney's fees and court costs. Even mere delay may cause damage and this too may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer about the Power of Attorney. Banks will often send the Power of Attorney to their legal department for approval. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.
Continue reading "Florida Powers of Attorney (Part 3 USING THE POWER OF ATTORNEY)" »
What activities are permitted by an attorney-in-fact?
An attorney-in-fact may perform only those acts specified in the Power of Attorney. If an attorney-in-fact is unsure whether he or she is authorized to do a particular act, the attorney-in-fact should consult the lawyer who prepared the document or other legal counsel.
May an attorney-in-fact sell the principal's home?
Yes. If the Power of Attorney authorizes the sale of the principal's homestead, the attorney-in-fact may sell it. If the principal is married, however, the attorney-in-fact must obtain the authorization of the spouse.
What may an attorney-in-fact not do on behalf of a principal?
There are a few actions that an attorney-in-fact is prohibited from doing even if the Power of Attorney states that the action is authorized. An attorney-in-fact, unless also a licensed member of The Florida Bar, may not practice law in Florida. An attorney-in-fact may not sign a document stating that the principal has knowledge of certain facts. For example, if the principal was a witness to a car accident, the attorney-in-fact may not sign an affidavit stating what the principal saw or heard. An attorney-in-fact may not vote in a public election on behalf of the principal. An attorney-in-fact may not create or revoke a Will or Codicil for the principal. If the principal was under contract to perform a personal service (i.e., to paint a portrait or provide care services), the attorney-in-fact is not authorized to do these things in the place of the principal. Likewise, if someone had appointed the principal to be Trustee of a Trust or if the Court appointed the principal to be a guardian or conservator, the attorney-in-fact may not take over these responsibilities based solely on the authority of a Power of Attorney.
What are the responsibilities of an attorney-in-fact?
While the Power of Attorney gives the attorney-in-fact authority to act on behalf of the principal, an attorney-in-fact is not obligated to serve. An attorney-in-fact may have a moral or other obligation to take on the responsibilities associated with the Power of Attorney, but the Power of Attorney does not create an obligation to assume the duties. However, once an attorney-in-fact takes on a responsibility, he or she has a duty to act prudently. (See Financial Management and the Liability of an Attorney-in-fact).
Is there a certain code of conduct for attorneys-in-fact?
Yes. Attorneys-in-fact must meet a certain standard of care when performing their duties. An attorney-in-fact is looked upon as a "fiduciary" under the law. A fiduciary relationship is one of trust. If the attorney-in-fact violates this trust, the law may punish the attorney-in-fact both civilly (by ordering the payment of restitution and punishment money) and criminally (probation or jail). The standard of care that applies to attorneys-in-fact is discussed under Financial Management and the Liability of an Attorney-in-fact.
This is the second part of a seven part article on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.
ABOUT THE POWER OF ATTORNEY
What is a Power of Attorney?
A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney grants the right to act on the maker's behalf. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.
What are some uses of a Power of Attorney?
A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to sign a contract, make health care decisions, handle financial transactions, or sign legal documents for the maker of the Power of Attorney. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do.
Where may a person obtain a Power of Attorney?
A power of attorney is an important and powerful legal document. It should be drawn by a lawyer to meet the person's specific circumstances. Pre-printed forms are often a disaster and may fail to provide the protection desired.
What is a "principal?"
The "principal" is the maker of the Power of Attorney - the person who is delegating authority to another.
What is an "attorney-in-fact?"
The "attorney-in-fact" is the recipient of the Power of Attorney - the party who is given the power to act on behalf of the principal. An "attorney-in-fact" is sometimes referred to as an "agent," but not all "agents" are "attorneys-in-fact." The term "attorney-in-fact" does not mean the person is a lawyer.
What is a "third party?"
As used in this pamphlet, a "third party" is a person or institution with whom the attorney-in-fact has dealings on behalf of the principal. Examples include a bank, a doctor, the buyer of property that the attorney-in-fact is selling for the principal, a broker, or anyone else with whom the attorney-in- fact must deal on behalf of the principal.
What is a "Limited Power of Attorney?"
A "Limited Power of Attorney" gives the attorney-in-fact authority to conduct a specific act. For example, a person might use a Limited Power of Attorney to sell a home in another state by delegating authority to another person to handle the transaction locally through a "limited power of attorney." Such a Power could be "limited" to selling the home or to other specified acts.
What is a "General Power of Attorney?"
A "general" Power of Attorney typically gives the attorney-in- fact very broad powers to perform any legal act on behalf of the principal. Often a list of the types of activities the attorney- in-fact is authorized to perform is included in the document.
What is a "Durable Power of Attorney?"
Limited and general Powers of Attorney terminate if and when the principal becomes incapacitated. Because many people would like Powers of Attorney that may continue to be used upon their incapacity, Florida law provides for a (special) power known as a "Durable Power of Attorney." A Durable Power of Attorney remains effective even if a person becomes incapacitated; however, there are certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an incapacitated principal. A Durable Power of Attorney must contain special wording that provides the power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.
Must a person be competent to sign a Power of Attorney?
Yes. The principal must understand what he or she is signing at the time the document is signed. The principal must understand the effect of a Power of Attorney, to whom he or she is giving the Power of Attorney, and what property may be affected by the Power of Attorney.
Who may serve as an attorney-in-fact?
Any competent person 18 years of age or older may serve as an attorney-in-fact. Attorneys-in-fact should be chosen for reliability and trustworthiness. Certain financial institutions and not-for-profit corporations may also serve.
This is the first part of a seven part article on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.
Kimberly Palmer of U.S. News & World Report wrote an article on the Alpha Consumer Blog where she discussed these issues. Her reader wrote:My husband, who is retired, has dementia. He responds to credit card offers in the mail and charges things to them, even though he shouldn't, because he is on limited Social Security disability income. He knows better, but his mind is weak. He always says he won't use the cards, but he still does. Even if I cut the cards in half, more come in the mail. We are now in $15,000 of debt, and it continues to rise. How can I get him to stop making charges? Will I be responsible for the debt, even if he passes away before I do?
She offers several solutions including
1- using http://www.optoutprescreen.com/
2- using a credit monitoring service.
3- using a durable power of attorney or guardianship if the person is incapacitated
4- Notifing the credit card companies directly
She also discusses the liability for the wife in the event of the husbands death.
If you need help with a Florida Durable Power of Attorney, Florida Guardianship contact a Florida Estate Planning Lawyer, or Florida Guardianship Attorney.
One of the most common questions I get is "What is the difference between a Durable Power of Attorney and a Guardianship?"
Richard Shea an attorney in Connecticut who publishes the Connecticut Estate Planning & Elder Law Blog has a good description of each and the differences in an article titled Power of Attorney v Conservatorship.
He summarizes the differences by stating:
A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have a power or attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Conservatorship. A court proceeding is not only costly, but the person appointed as your Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principal.
Another significant difference that I often emphasize with my clients is that although a Durable Power of Attorney allows you to act when and if you want to, a Guardianship makes you legally responsible to act.
You should discuss your specific plans for a Florida Durable Power of Attorney or a Florida Guardianship with your Florida Estate Planning Lawyer to determine which is the right vehicle for your needs.
Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.
1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?
Leanna Hamill with the Massachusetts Estate Planning and Elder Law Blog wrote an article on Estate Planning titled Should You Discuss Your Plans with Your Children?
In the article she discusses the fact that clients often wonder if they should share their estate plans with their children. In giving her expected advice of IT DEPENDS, Leanna explains some of the reasons why one should and should not disclose their plans. These deal with the way the property is split between the beneficiaries, who will be the PR, Executor, or Trustee, unfit children, issues of disinheritance, and special provisions for one child.
For more insight on these issues read her article or speak with your Florida Estate Planning Lawyer about your particular situation. While you may have not considered the ramifications and ways to approach your specific issues, an Experienced Florida Estate Planning Attorney has.
Wills
•A new Florida will is almost always advisable for the divorced client, especially if there are minor children.“Pour Over” Wills and Revocable Trusts•Florida Statute section 732.507 generally provides that after the dissolution the provisions for the former spouse in the will are treated as if the former spouse died at the time of the dissolution of the marriage.
• A subsequent marriage, birth, adoption, or divorce will not revoke a Florida Will.
•A Major Concern of Most Clients
-Former spouse will be appointed guardian of the property of the deceased client because they are the natural guardian of minor children and have the highest priority for appointment as guardian. The priority can be altered by naming another individual as guardian under a Florida will.-Consider avoiding a guardianship of the property by having assets for minors held in a Florida trust. Someone other than the former spouse can then be named as trustee.
•If the client has established a revocable inter vivos (living) trust and executed a Florida pour over will (a will that distributes the residue to a trust) prior to the dissolution, the former spouse could potentially inherit the entire estate if the former spouse is the beneficiary of the trust. Florida Statute section 732.507 does not have any effect on inter vivos trusts.Estate Tax Planning•A new or restated Florida trust should be executed to remove provisions for the former spouse for the reasons stated above.
•If the client has a taxable estate, the fact that they no longer have a spouse could drastically change their estate tax planning due to loss of the marital deduction.Life Insurance, Deferred Compensation, IRA’s, Annuities
•Beneficiary designations should be reviewed to assure that the former spouse is no longer a beneficiary.•IRA designations need to be reviewed to make sure the effect of the chosen beneficiaries does not adversely affect one of the beneficiaries because of age, or ineligibility
In Florida Domestic Partners need the help of a Florida Estate Planning Lawyer to handle their complex situations. Domestic partners are considered any two people no mater what sex who live together and what each other to benefit in the event of the subsequent death of the other.
Without a valid Florida Will or Valid Florida Estate Planning Documents the domestic partner will not receive any portion of the others estate upon their death. The Florida intestate statutes do not provide any benefits for a domestic partner.
If one creates an invalid Floria Will using software or a form, the Florida statutes provides benefits to the spouse and children of the deceased. Although the decedent's desires may not be complied with completely. Their family, who is usually the intended beneficiary, will receive the proceeds from the estate. This is not true with domestic partnerships. The domestic partners will receive nothing from the decedents estate.
To make sure you and your domestic partner are protected, you should have your Florida Estate Planning Documents reviewed or created by a Florida Estate Planning Lawyer or Attorney.
If you or a member of your family was to have a crisis are you prepared? That is the question you should ask your Florida Estate Planning Lawyer or Attorney on a regular basis. Often we only look at significant events in our lives and do not consider the effects that a significant effect in our parents or children's lives will have upon us.
When you review your Florida Estate Plan you should also review or remind your parents and adult children to review their plans also. There are changes in the laws which may prompt updates to your estate planning techniques. In addition, significant changes in your life including births, deaths, marriages, divorces, and changes in assets should trigger an estate plan review.
Generally when an Florida Estate Planning Attorney creates Florida Estate Planning Documents their duty is over once the documents are prepared. The obligation is up to you to seek a regular review of these documents.
In addition to reviewing the documents you should consider the following:
1) Make sure you know where your parents documents are, and you tell your personal representative and beneficiaries know where the documents are. If you are concerned that the documents may disappear, you may keep them with an attorney. If you keep your documents with a Jacksonville Florida Estate Planning Lawyerr or Jacksonville Florida Probate Lawyer you should tell people who has them.If are not funded they will provide none of the expected benefits upon the death of the grantor.2)Check to see that the Florida Estate Planning documents are complete and reflect their current family and financial situation.
3)Make sure that the documents reflect your or your parents current mind set. Wills and trusts need to be reviewed for changes in their financial condition as well as the beneficiaries family and financial condition.
4) Make sure all Estate Planning Documents are signed and witnessed as necessary under the current statutes or those in place at the time of execution.
5)Make sure any Florida Durable Power of Attorney documents mention the current Florida Statutes, many durable power of attorney documents are not honored when they do not comply with the Florida Statutes.
6) Make sure your Florida Living Trust or Florida Revocable Trust or any Florida Trusts are funded. That means that the bank accounts, CD accounts, land, and other assets have been transferred to the trusts. Any deeds to this effect should be properly recorded.
Often Estate Planning clients struggle with their spouse or self over who to pick as an agent to represent them in a Florida Durable Powers of Attorney ( Financial decisions), Florida Living will & Designation of Health Care Surrogate ( Health care decisions) and Revocable Trusts (Financial Management).
Initially clients might thing of using a Co-Agent. This can cause many problems and unforeseen circumstances and must be done with the correct expectations and knowledge of the potential problems. Michael Keenan has an article discussing several of these issues, titled Be Careful With Co-Agents. In summary, before choosing co-agents you should consider whether they get along well with each other, and what to do if they do not in the future.
In addition, what if one lives far away or moves after the documents are created. Some hospitals or financial institutions may require that both act together unless each co-agent has "several powers" or "joint and several powers" This can be difficult and impracticable. You put your financial and health interest at risk due to delay in execution of the documents.
Both Michael Keenan and David Goldman, a Jacksonville Estate Planning Lawyer & Attorney, recommend that unless there are extraordinary situations taking place, the use of co-agents should allow for flexibility and/or the ability for each to act independently.
As an Estate Planning Lawyer in Jacksonville Florida, I am often asked about issues dealing with addresses in Florida Wills, Florida Trusts, Florida Living Wills, Florida Durable Powers of Attorney, and other documents.
Generally the address and phone number in these documents is to help locate or contract the person. In some cases they can be used to help distinguish one John Doe from the next. The Connecticut Estate Planning Blog had an example of when it might be important to update the address, but as the site states, this would only happen on a law school exam.
The only possible reason why such a move would prompt a legitimate will amendment is if the move created an identification problem. For instance, in the above example, suppose the client disinherited his other brother, also named Billy Bob (I don't think I've ever seen two brothers with the same name), out of his will, but then that brother moves to Glastonbury after the other Billy Bob moved from Glastonbury to Wethersfield. Now the will seems to identify someone who the client didn't intend to include as a beneficiary of his will.Please note that the above facts only tend to arise in law school exams, not real life. Suffice it to say that address changes do not require will changes unless there are extraordinary circumstances.
As a Jacksonville Living Trust Lawyer, I have noticed many changes that effect the administration of Trusts, even those which were already in existence when on July 1, 2007 when the Florida's New Trust Code became effective. If you are an estate planning attorney in another state and have clients who have trusts in Florida, it is most likely that their trusts must be managed differently than their trust document would imply.
1) A trustee has a duty to act in good faith in the interest of the beneficiaries and in accordance with the terms of the trust, imposed in part by sections 736.0801 and 736.0802.
2) There is a new 6 month statute of limitation sunder section 736.1008 with regard to any item set forth in a trust disclosure statement which contains a limitation notice containing the six-month period of time under 736.0604 within which to contest the validity of the terms of the trust.
3) The court has the power to take action and exercise jurisdiction as necessary " in the interest of justice."
4) The court has the power to modify or terminate a trust under sections 736.0410-04115, 0413, 0415, and 0416. Judicial modification in the best interest of the beneficiaries under section 736.0415(3) is not mandatory as to (i) any trust created prior to January 1, 2001 and (ii) any trust created after December 31m 2000 if it is subject to the Traditional RAP (90 years vs the expanded 365 Year RAP that Florida permits) or the trust expressly prohibits such judicial modification.
5) Nonjudicial modification with unanimous agreement of the trustee and all qualified beneficiaries under 736.0412 is not mandatory as to (i) any trust created prior to January 1, 2001, (ii) any charitable trust until the termination of all charitable interests, and (iii) any trust created after December 31, 2000 if it is subject to the Traditional RAP unless the trust expressly authorizes such nonjudicial modification.
6) New Spendthrift protections which affect the rights of creditors and assignees to reach a trust under part V of the Trust Code.
7) Trustee's duty under section 736.0503 to pay expenses and obligations of a settlor of a revocable trust upon death.
8) Trustee's duty under section 736.05055 to file a notice of trust with regard to a revocable trust upon the death of a settlor.
9) Trustee's duties under section 736.0813 to provide to qualified beneficiaries (or their designated representatives under 736.0306) (i) notification of the existence of an irrevocable trust, the identity of the trustee and their rights to trust accountings, (ii) a copy of the trust agreement and to account, and (iii) respond to requests for relevant information about the assets, liabilities, and particulars relating to the trust administration
10) Rights of third parties other than the trustee or beneficiary under sections 736.1013-736.1017
As a Jacksonville Estate Planning Lawyer, one of the most common things I do is determine what is necessary for a clients Florida Estate Plan. Greg Herman-Giddens of the North Carolin Estate Planning Blog has an Article called the Anatomy of an Estate Plan where he discusses and defines the Basic Documents in an Estate Plan:
WillIn addition to these document your Florida Estate Planning Attorney should be looking at
Durable power of Attorney
Health Care Power of Attorney
Living Will
HIPAA Authorization, and
Living Trust
InsuranceAll of this should be reviewed on a regular basis and always when one of the following happens:
Asset Titles and Beneficiary Designations
Investment Management
Asset Protection
(1) Marriage, divorce, death of spouse.
(2) Birth of a child.
(3) Children become financially independent.
(4) Birth of a grandchild.
(5) New business venture.
(6) Substantial growth in your business.
(7) Job promotion.
(8) Retirement.
(9) Purchase of life insurance.
(10) Move to a different state.
(11) Substantial increase or decrease in wealth.
(12) Decision to make large charitable gifts.
(13) Increase in risk of being subject to a lawsuit.
(14) Substantial amounts of property are in joint names.
(15) You purchase real property (including a time share) in another state.
As a Jacksonville Estate Planning Attorney, I wanted to share with you and your family an important planning idea on he use of Powers of Attorney and Health Care Surrogate forms for college students and adult family members that are under 30 years of age. These documents are recommended because of the higher standards of patient privacy that hospitals and physicians are now being held to under the Health Insurance Portability and Accountability Act ("HIPAA"). Because of this, medical providers, family doctors, and health care centers are often unable to provide medical information to anyone without the authority of the patient.
Section 1177 of HIPAA imposes strict penalties on anyone who violates the law by providing a patient's individually identifiable health information to another person, even a parent or spouse. Specifically, the law states as follows:
(a) OFFENSE -- A person who knowingly and in violation of this part--(1) uses or causes to be used a unique health identifier;(b) PENALTIES. -- A person described in subsection (a) shall--
(2) obtains individually identifiable health information relating to an individual; or
(3) discloses individually identifiable health information t another person, shall be punished as provided in subsection (b)(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;
(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and
(3) if the offense is committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.
(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provisions of health care to an individual; and(i) identifies the individual; or
(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.
Continue reading "Powers of Attorney for College Students" »
Florida Estate Planning Lawyers often include Durable Power of Attorney documents in the estate planning they do. Today I read an article on the California Estate Planning Blog entitled "Do I Need A POA Over My Spouse?".
The article recommends that everyone needs a power of attorney over their spouse in case something happens. Without a Florida Durable Power of Attorney in place, a spouse is unable to file taxes, deal with social security, talk to creditors or deal with other financial considerations that require the spouse's signature.
You cannot get a Florida Durable Power of Attorney if your spouse becomes incapacitated. The only alternative is to setup a Florida Guardianship. This is costly, time consuming, and requires one to act while a Florida Durable Power of Attorney gives one the ability to act, without the legal requirement to act.
For the same reasons why you need a Florida Durable Power of Attorney for you Spouse, you also need one for any children over the age of 18. If you child becomes injured, or incapacitated, you will be unable to act on their behalf without a Florida Power of Attorney.
Many Florida Estate Planning Lawyers also recommend a Combination Living Will and Designation of Health care Surrogate with HIPAA Release
Some Florida Estate Planning Lawyers are now providing documents for college age kids as part of their parents estate planning.
A valid Health Care Proxy or Designation of Health Care Surrogate, or Medical Power of Attorney and a Durable Power of Attorney are important documents to have for your adult children.
With recent HIPAA regulation and privacy laws, spouses can not find out medical information on each other, much less on their adult children. If you child is hurt, incapacitated, or unable to speak for themselves, a Florida Durable Power of Attorney or Florida Designation of Health Care Surrogate can allow you to act and make decisions on the behalf of your adult children. It is important to include HIPAA releases in these documents so that you can receive the background medical documents necessary to make decisions.
Remember, that your “child,” is an adult and their Privacy is protected under the law, once he or she turns 18. Under HIPAA, the medical community treats him or her as completely separate and distinct from you, and owes your “child” full confidentiality. There are circumstances when a medical provider may slip up and allow a parent or friend more information than they are suppose to, but without the proper documents they are not suppose to discuss the care and treatment of your child with anyone, including a parent.
To make sure you are prepared in case a medical emergency arises, you should talk with your Florida Estate Planning Attorney. Make sure that if you have a durable power of attorney it is valid, in the last few years there have been many problems with them, so it needs to mention the Florida Statute it that its authority comes from. If there your documents are more than 3 years old, you should have them reviewed for compliance with the new regulations.
In Jacksonville Florida and other areas of the estate Florida Estate Planning Lawyers and Florida Guardianship Lawyers use advance directives including Durable powers of Attorney and Designation of health care surrogates to limit the need for Florida plenary or limited guardianship.
Prior to the appointment of a Florida Guardian, the Duval County court or local court will determine whether the ward executed a valid advance directive in accordance with Florida Statutes, Section 765. If a valid directive exists the court will specify what powers the guardian will have in the letters of guardianship. If court is considering modifying or revoking the authority of the surrogate, the surrogate must be given notice prior to the hearing.
Often clients ask about Do it yourself living wills, wills, trusts, and other components of estate planning. I read an interesting post by an Estate Planning Attorney and although they are not in Jacksonville Florida their advice and commentary is very relevant. Basically with a will, you don't often get a chance to correct mistakes or have a professional fix or review the document. The Estate Planning Lawyer compares it to buying a hair dye in a store and then getting a professional to fix your hair after you make a mess or do serious injury to yourself.
While this is true with business planning, often with estate planning there is no time to fix the mistakes. Often one discovers the mistakes in their will, trust, power of attorney only after it is to late to make any changes. Sure we could all go purchase a form, or use an online service and save some money, but if you are trying to protect assets, save money on probate, or reduce estate taxes, the few dollars saved (even if large by percentage) will often cost hundreds or thousands of times as much when the taxes come due.
Be careful with do it yourself kits and services, and if you have something to loose, remember that you often get what you pay for.
Attorney-in-Fact:
The person selected to have the authority to act on the behalf of a principal. An attorney-in-fact can be any adult that the principal selects. (He or she need not be a Florida lawyer.) Typically, people appoint an attorney-in-fact in a power-of attorney, granting the attorney-in-fact the power to transact business (enter into agreements, contracts, make transfers of property, etc.) in accordance with the power-of-attorney. The authority of the attorney-in-fact cannot last beyond the life of the principal. In most cases a power of attorney expires if the principal becomes disabled or incapicated. Florida allows for a Durable Power of Attorney that can become effective upon a disability, an occurrence of an event, or at the time that the document is signed. Florida law provides that a durable power of attorney is not impacted by a persons subsequently disability. The agent can also use this power to help the principal qualify for Florida Medicaid.
A Florida Power of Appointment is a right given to another in a written instrument, such as a will or trust that allows the other to decide how to distribute your property. The power of appointment Can be a general power of appointment if it places no restrictions on who the distributes may be, or Limited or Special Power of appointment if it limits the eventual distribution.
Legally Incapacitated Person: A person who has been determined by a court as not capable of handling his or her personal and financial affairs.
A Florida Durable Power of Attorney, Florida Trust, Florida Guardianship, Florida Designation of Health Care Surrogate all deal with Legally Incapacitated persons.
One may not be the Personal Representative, Agent, or Trustee if they are Legally Incapacitated.
In Florida Estate Planning, Florida Guardianship Proceedings, and Florida Probate cases it is often necessary to setup a full or plenary guardianship.
Guardian: an adult appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or legally incapacitated person's personal care and nurturing.
A parent is the natural guardian of their minor child. If a child receives over $15,000 from a probate or settlement that requires court approval, a parent will need to create a Florida Guardianship over the Property of the minor child.
Other times Florida Guardianships are used to try to stop individuals from wasting their assets. Although this was permissible in the past in Florida, the new standard does not take into account the actions of the individual only the mental capacity of the individual and by law must impose the least restrictions on an individual when evaluating their mental and physical capacity.
Often, Florida Estate Planning Techniques such as Florida Revocable Living Trusts, Florida Durable Powers of Attorney, and Florida Designation of health Care Surrogates are used to prevent a guardianship from being imposed on an individual at a later date.
Fiduciary: This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly.
Attorney-in-Fact:
The person selected to have the authority to act on the behalf of a principal. An attorney-in-fact can be any adult that the principal selects. (He or she need not be a Florida lawyer.) Typically, people appoint an attorney-in-fact in a power-of attorney, granting the attorney-in-fact the power to transact business (enter into agreements, contracts, make transfers of property, etc.) in accordance with the power-of-attorney. The authority of the attorney-in-fact cannot last beyond the life of the principal. In most cases a power of attorney expires if the principal becomes disabled or incapacitated. Florida allows for a Durable Power of Attorney that can become effective upon a disability, an occurrence of an event, or at the time that the document is signed. Florida law provides that a durable power of attorney is not impacted by a persons subsequently disability. The agent can also use this power to help the principal qualify for Florida Medicaid.
A new problem has begun to surface in Florida Estate Planning. What happens if you use email, or other online services? Will your loved ones be able to act upon your behalf if you are incapacitated or unable to act on your own?
With the rising use of the internet, it doesnt matter if you are in Jacksonville Florida or another city.How can you give your heirs access to information that may be stored online but secured by a password, but without the risk of unauthorized access.
If you put your passwords in your Florida will, they could change, or people who should not have access to them might gain access. Likewise biometrics (fingerprint or retinal scans) could also pose problems if there is not a password in addition to the biometrics.
The best solution seems to deal with a password vault where there is a master password. This way if your passwords change, the person who has access to the master password would always have the current password.
The master password could be on a document that is referenced within the will or other estate planning documents.
With the increase in electronic communications it’s important to choose a Florida Estate Planning Attorney who is familiar with the technology and how to deal with these recent problems in estate planning.
Another solution is to create a Digital Asset Revocable Trust. This trust can be the owner of all of your digital assets or the assets you wish others to have access to upon a disabling event or your death. Since most of these digital assets are licenses, the trust will survive your death and others will be able to access the information. You still need to plan on how to transfer the information or knowledge to the successor trustee or beneficiary.
A general power of attorney will not be effective when the principal, the one who wrote and signed it, becomes incompetent, but a Florida durable power of attorney will still be valid after a person becomes incompetent or incapacitated.
One of the primary tax purposes of a durable power of attorney is to provide a mechanism for reducing a person's estate by making gifts of his or her assets. A similar objective in a smaller, nontaxable estate may be to make the principal eligible for Medicaid planning or assistance. In either case, it is prudent, and good practice demands, that the attorney at law who drafts the power of attorney includes the power to make gifts.
If the gift-making power is not included, the validity of the gift may be challenged. The IRS has successfully challenged gifts that were made when there was no specific authority in the document.
A power of attorney is not the same as a trust, a will or a living will. But it is a separate legal document that is an important part of a Florida estate plan.
Please make sure when creating Powers of Attorney, trusts, or wills they are setup correctly. Often fill in the blank forms can provide a framework, but they are not able to take into condideration the particulars need of individuals. Its best to have an attorney prepare these documents and have them reviewed yearly by your Florida Estate Planning Attorney for changes in your status, and the law.
A Durable Power of Attorney and Health Care Directive / Living WIll are two additional documents that should be part of every family's estate plan, in addition to a Will or Living Trust.
An Advance Health Care Directive appoints someone to make medical decisions for you if you become incapacitated. It also tells doctors what kind of medical care you do, or don't, want at the end of your life.
A Durable Power of Attorney for Property Management appoints someone to manage your finances for you if you become incapacitated.
Both documents are part of good Florida estate planning techniques.
The process of preparing and planning for a persons financial, health care and personal affairs. It includes documents to designate an agent in the event of a future disability such as a Living Willl or health care surrogate to assist with health care matters if one is unable to do so, a power of attorney to help with financial matters, and wills and trusts to pass financial property to family, friends and possibly other organizations. Estate Planning can ensure that a person is able to pass their property exactly as they desire instead of how Florida law or their home state would dictate it pass and then if trusts are prepared they can direct how the property will be handled long after the grantor is dead. Estate Planning is critical for all people and not merely those with a large estate. It determines who the guardian of minor children would be, who the personal representative/trustee (if there was also a trust) would be that handles the affairs and a guardianship from having to be imposed where the court would take control. Florida probate could be avoided as well through the use of trusts and or proper designations for the way that property is held saving time and money. Also if it is a large estate money could be saved that would otherwise have to be paid for estate taxes. Once all the persons assets exceed a certain exemption amount the estate is taxed at over 40%. With proper planning substantial amounts of money can be saved.
